Academic journal article Journal of Markets & Morality

The Faith-Based Initiative and the Freedom of the Church

Academic journal article Journal of Markets & Morality

The Faith-Based Initiative and the Freedom of the Church

Article excerpt

Over the last quarter century, federal funds have increasingly been made available to faith-based organizations. Although some programs involving these organizations have been controversial, presidential administrations and legislators from both political parties have generally supported extending federal grants to these groups. (1) The federal courts have also aided the effort. Two decades ago, the courts frequently read the language of the First Amendment that prohibits the establishment of religion to require something of a strict separation of church and state. This "separationist" reading of the Constitution led the courts to strike down programs that enabled religious organizations to receive public funds and other support. (2) In recent years, however, the United States Supreme Court has read the First Amendment to require the government to be neutral on matters related to religion. (3) Under this view, government can neither favor nor disfavor religion. This approach has made it considerably easier for the federal courts to uphold programs that directed funds to religious groups. Indeed, the neutrality principle goes a long way toward justifying the funding of faith-based organizations engaged in social work. If two groups, one religious and the other secular, are engaged in providing the same social service, a neutral government should fund either both or neither.

In one respect, however, American law remains remarkably inhospitable to religious groups that engage in social work. When a church, synagogue, or other religious community ventures beyond acts of worship, its activities become subject to a host of general laws. At times, compliance with these laws can create a real conflict with the shared identity and mission of a religious community. Neither the political branches nor the courts have offered much protection to religious communities from the effect of these laws whether or not the communities take public funds of any kind. For many groups encouraged to participate in public programs by the president's faith-based initiative, their vulnerability to these laws will no doubt come as a rude surprise. As we will see, state employment discrimination laws can require a faith-based organization to hire someone whose religious views are antithetical or even hostile to those of the organization. State laws regulating employee benefits can dictate that a religious organization provide abortifacients to its employees even though the organization considers use of such products to be gravely sinful.

This article will describe how general laws like these can adversely affect religious groups engaged in education, charitable work, and other social services. The article urges the federal courts to read the First Amendment to better protect churches from general laws that conflict so sharply with their mission and sense of themselves. It is, after all, the freedom of the church from secular authority that is the first and most fundamental meaning of religious liberty as it has developed in the West.

Restrictions on Hiring Decisions

Any discussion of religious liberty in the United States must begin with the Supreme Court's seminal decisions in Employment Division v. Smith. (4) In Smith, two Native Americans who practiced a religious ceremony that involved peyote were discharged from their jobs because of their use of the drug. When they applied for unemployment benefits, the state denied their application because use of the drug violated the state's criminal laws. These laws made no exception for religious use of peyote. The two discharged individuals filed suit in federal court and claimed the state's laws impinged upon the free exercise of their religion. The Supreme Court, however, ruled against them. In an opinion written by Justice Scalia, the Court held that when a state has enacted a generally applicable law, a religious believer cannot claim an exemption from that law on the basis of the First Amendment. …

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